Opinion
No. 2 CA-CR 2016-0373
05-09-2018
THE STATE OF ARIZONA, Appellee, v. ENRIQUE GUZMAN-CASTRO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20145125001
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Enrique Guzman-Castro was convicted of four counts of sexual conduct with a minor under fifteen, two counts of sexual abuse of a minor under fifteen, two counts of molestation of a child, and one count of aggravated assault of a minor under fifteen. The trial court imposed a combination of consecutive and concurrent prison terms, including four life sentences without the possibility of release for thirty-five years. Guzman-Castro argues the state presented insufficient evidence that he committed aggravated assault by kissing his niece on the lips. He also contends an expert witness's response to a jury question constituted fundamental error. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming Guzman-Castro's convictions. See State v. Welch, 236 Ariz. 308, ¶ 2 (App. 2014). In the fall of 2013, Guzman-Castro engaged in various sexual acts with his nieces, eleven-year-old R. and six-year-old J. R. initially disclosed the abuse to her thirteen-year-old sister, C., and then several months later to her mother, who contacted the police. About a week after R. told C., C. walked in on Guzman-Castro kissing J. on the lips while she was sitting on his lap.
¶3 A grand jury indicted Guzman-Castro for four counts of sexual conduct with a minor under fifteen, two counts of sexual abuse of a minor under fifteen, two counts of molestation of a child, and one count of aggravated assault of a minor under fifteen. He was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
In the fact section of his opening brief, Guzman-Castro notes that "the minute [entry] order but not the oral sentencing specifies [A.R.S. §] 13-705(A) as the authority for the life sentences and that the trial court did not orally impose a sentence for count eight." However, he offers no corresponding argument. Accordingly, we deem any potential issues relating to the imposition of those sentences waived and do not address them further. See Ariz. R. Crim. P. 31.10(a)(7) (appellant's argument must contain supporting reasons and legal authorities); State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
Sufficiency of the Evidence
¶4 Guzman-Castro challenges the sufficiency of the evidence to support his aggravated-assault conviction. The state alleged that he committed the offense by kissing J. on the lips. We review de novo the sufficiency of the evidence. State v. Snider, 233 Ariz. 243, ¶ 4 (App. 2013). In doing so, we view the evidence in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015).
¶5 When reviewing the sufficiency of the evidence, we consider "whether substantial evidence supports the jury's verdict[]." State v. Lopez, 230 Ariz. 15, ¶ 3 (App. 2012); see also Ariz. R. Crim. P. 20(a). "Substantial evidence is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of [the] defendant's guilt beyond a reasonable doubt.'" State v. Sharma, 216 Ariz. 292, ¶ 7 (App. 2007), quoting State v. Mathers, 165 Ariz. 64, 67 (1990). "If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial." State v. Davolt, 207 Ariz. 191, ¶ 87 (2004), quoting State v. Rodriguez, 186 Ariz. 240, 245 (1996) (alteration in Rodriguez). Substantial evidence may be either direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005).
¶6 As relevant here, "[a] person commits assault by . . . [k]nowingly touching another person with the intent to injure, insult or provoke such person." A.R.S. § 13-1203(A)(3). The offense is elevated to aggravated assault "[i]f the person is eighteen years of age or older and commits the assault on a minor under fifteen years of age." A.R.S. § 13-1204(A)(6). Because the terms "injure," "insult," and "provoke" are not defined by statute, we use their ordinary meanings. See State v. Cox, 217 Ariz. 353, ¶ 20 (2007); see also A.R.S. § 1-213 (undefined words must "be construed according to the common and approved use of the language"). Thus, "injure" means "[t]o cause physical harm to; hurt" and "[t]o cause distress to," The American Heritage Dictionary 904 (5th ed. 2000); "insult" means "[t]o treat with gross insensitivity, insolence, or contemptuous rudeness" and "[t]o affront or demean," id. at 910; and "provoke" means "[t]o incite to anger or resentment" and "[t]o stir to action or feeling," id. at 1419.
¶7 On appeal, Guzman-Castro does not deny he kissed J. but instead argues, "[T]here was no evidence that [he] intended to injure, insult, or provoke" her. He points out that the state's theory of the case was that he kissed J. because he "had a sexual interest in his nieces," and he reasons that "expressing sexual interest" does not fall within the meaning of injure, insult, or provoke. Guzman-Castro also asserts that C. described the kiss as a "peck" and suggests "[n]ormally a kiss between family members is a sign of affection."
¶8 To establish this offense, the state relied largely on the testimony of C. She testified that one afternoon she went looking for J. and found her alone in the carport with fifty-one-year-old Guzman-Castro. J., then six years old, was sitting on Guzman-Castro's lap, which his wife described as "very inappropriate" and "very shocking" for their family. His wife explained that the family belongs to a church with "defined" gender roles; for example, the men and women sit separately and the men always eat first. According to C., she overheard Guzman-Castro tell J. "he was going to take [J.] to Mexico with him, and then he kissed her . . . [o]n the lips." Although C. initially described the kiss as a "peck," she explained, "It wasn't quick, but it wasn't long. It was just kind of in between." C. also testified Guzman-Castro stopped when he saw her. She asked him "why he did that," and he "pretended like nothing happened" and then tried to kiss her. C. stated, "In our family we don't kiss each other on the lips. It's not normal."
¶9 In addition to C.'s testimony, the state presented evidence that around the same time Guzman-Castro kissed J. he had on other occasions committed sexual conduct with her by digitally penetrating her vulva and sexual abuse by touching and squeezing her breasts. Cf. State v. Robinson, 153 Ariz. 191, 200 (1987) (recognizing "psychological sequelae" in cases where relative sexually abuses child); Twin City Fire Ins. Co. v. Doe, 163 Ariz. 388, 390 (App. 1989) ("When the intentional tort of child molestation is committed, the basic intent to injure will be presumed . . . ."). Based on evidence of the family dynamic, the age difference between Guzman-Castro and J., and the circumstances surrounding the kiss, reasonable persons could conclude that Guzman-Castro intended to injure—or to "hurt" or "cause distress to"—J. by kissing her. The American Heritage Dictionary 904 (5th ed. 2000).
¶10 Guzman-Castro nevertheless argues "[i]t was obvious" he did not intend to injure, insult, or provoke J. because she "did not know it was wrong." But how J. perceived the kiss is irrelevant; instead, the focus is on Guzman-Castro's intent. See § 13-1203(A)(3); cf. In re Jeremiah T., 212 Ariz. 30, ¶ 6 (App. 2006) (assault under § 13-1203(A)(3) requires touching but not resultant injury). Viewing the evidence in the light most favorable to upholding the conviction, we conclude the state presented sufficient evidence to support a finding of Guzman-Castro's guilt beyond a reasonable doubt. See Snider, 233 Ariz. 243, ¶ 4.
Jury Question
¶11 Guzman-Castro also argues an expert witness's response to a jury question constituted fundamental error. Specifically, he asserts the expert "testified that in her experience children who are fabricating allegations are usually detected by the police before trial." He maintains, "This is no different from testifying that any child testifying in court about sexual activity with an adult is usually telling the truth." The state responds that Guzman-Castro invited any error on this issue because he "affirmatively approved" the jury question and did not object after hearing the response. We address the state's contention first. See State v. Logan, 200 Ariz. 564, ¶ 9 (2001).
¶12 The state called as an expert witness a forensic interviewer who specializes in working with child abuse victims. The expert testified that she did not know "anything about the facts of this case" and that her testimony would be based on "the research in the field and [her] own experience working in the field." A juror submitted the following question for the expert:
In your experience, when children falsely accuse, say to get more attention of a parent who may be working too much, how likely is it for the child to carry the allegations to the extent of the trial process and make up specific details? Do they usually break at some point before and admit to the false statements?The trial court first discussed with counsel whether to ask the question. The prosecutor did not object, and defense counsel stated:
That's fine with me. I'm depending on [the first part]. I think what she said is that we haven't studied false accusations, but I would say the same, they know if it's appropriate. Maybe a couple questions in follow-up, but I'm thinking that that's probably what she's going to say because that's sort of what she said in Direct.
The jury question at issue is labeled number 13, which the transcript shows both parties agreed to by stating, "Okay." Defense counsel made the statement above after the trial court asked about jury question 14. However, the parties seem to agree—and so do we given the nature of the two questions—that defense counsel was actually referring to jury question 13. --------
¶13 The trial court then asked the expert the question, and she responded:
Well, the first part of that question, children making false allegations because parents work too much, are not one we commonly see as a common reason for a false allegation to be made.Defense counsel asked a few follow-up questions:
And the second part is generally once the case is investigated, either I find out later from the case detective that it was determined that it was a false report, so usually it somehow gets resolved before the trial process.
[Defense Counsel]: With regard to the research about whether or not kids that carry false accusations actually carry them all the way coming in to court, I thought that I understood your testimony before lunch was that there wasn't really any research about false accusations.
The Witness: The question was asking about my experience working with this?
[Defense Counsel]: Yes.
The Witness: So that's my most common experience is what I was talking about, and you're right. As I mentioned before, there is no research about children carrying it in to court.
[Defense Counsel]: And it would seem to me that it would be, it would be hard to document that without like some potential follow-up and interviewing and all of that; right?
The Witness: Right.
[Defense Counsel]: And there isn't that body of research as far as you know?
The Witness: Correct.
¶14 The purpose of the invited-error doctrine is "to prevent a party from 'inject[ing] error in the record and then profit[ing] from it on appeal.'" Logan, 200 Ariz. 564, ¶ 11, quoting State v. Tassler, 159 Ariz. 183, 185 (App. 1988) (alterations in Logan); see also State v. Lucero, 223 Ariz. 129, ¶ 17 (App. 2009). We look to "the source of the error, which must be the party urging the error." Logan, 200 Ariz. 564, ¶ 11. Invited error requires more than "[m]ere acquiescence." State v. Torres, 233 Ariz. 479, ¶ 7 (App. 2013).
¶15 Here, as Guzman-Castro points out, the question did not originate with him, it was posed by a member of the jury. However, Guzman-Castro was aware of the question—specifically, its reference to the expert's experience rather than the research—and did not object to it or request that the trial court modify the language. See Schlecht v. Schiel, 76 Ariz. 214, 220 (1953) ("By the rule of invited error, one who deliberately leads the court to take certain action may not upon appeal assign that action as error."). Indeed, the record indicates he was amenable to the question. Moreover, after the expert gave her response, Guzman-Castro did not object but instead asked follow-up questions, acknowledging that the question asked about her experience and further compounding any error. Thus, it appears Guzman-Castro's conduct was more than mere acquiescence.
¶16 Even assuming the error was not invited, however, Guzman-Castro did not object to the question and has therefore forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). Under this standard, the defendant bears the burden of showing that error exists, the error is fundamental, and the error caused him prejudice. State v. Dickinson, 233 Ariz. 527, ¶ 10 (App. 2013). "Fundamental error is limited to 'those rare cases that involve error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" State v. Valverde, 220 Ariz. 582, ¶ 12 (2009), quoting Henderson, 210 Ariz. 561, ¶ 19.
¶17 Relying on State v. Lindsey, 149 Ariz. 472 (1986), and State v. Moran, 151 Ariz. 378 (1986), Guzman-Castro maintains the expert should not have been allowed to testify about the credibility of other witnesses in the case. He reasons that the expert did so here by "implying her belief that, because the police had not discovered that the nieces' allegations were false, they must be telling the truth at trial." He further contends that this alleged error was "clearly prejudicial" because the jury "could . . . [have] conclude[d] that the children were lying if it were not for [the expert's] testimony that in her experience children who lied were detected before trial."
¶18 But as Guzman-Castro seems to acknowledge, the expert was not giving her "opinion of the accuracy, reliability or credibility of a particular witness," which Lindsey expressly forbids. 149 Ariz. at 475. In Lindsey, the state's expert was "allowed to give specific opinions with regard to her view of credibility," including her statement that there was a "'very strong'" likelihood the victim had been sexually abused. Id. at 474. Similarly, in Moran, the problematic testimony included an expert's statement that he believed the victim's original story of molestation, despite her later recantation. 151 Ariz. at 384-85. Here, by contrast, the expert testified more broadly that, based on her experience, false reports by children are "generally . . . resolved before the trial process."
¶19 Nonetheless, we agree with Guzman-Castro that the expert's response could be interpreted to suggest the children were being truthful because their accounts were not determined to be false before trial. Such testimony was improper. See Lindsey, 149 Ariz. at 475 (experts not allowed "to give opinions with respect to the accuracy, reliability or truthfulness of witnesses of the type under consideration"); cf. Moran, 151 Ariz. at 382 ("Nor may the expert's opinion as to credibility be adduced indirectly by allowing the expert to quantify the percentage of victims who are truthful in their initial reports despite subsequent recantation.").
¶20 Because the testimony was improper, we must next consider whether the error was fundamental and prejudicial. See Dickinson, 233 Ariz. 527, ¶ 10; see also Henderson, 210 Ariz. 561, ¶ 20 (defendant must establish both fundamental error and prejudice). State v. Herrera is instructive. 232 Ariz. 536 (App. 2013). There, the defendant's stepdaughter accused him of molesting her, and, at trial, the state called the same expert witness who testified in this case to explain "the behavior and characteristics of child sexual abuse victims." Id. ¶¶ 2, 43. The expert testified, in response to a jury question, that stepfathers are often the perpetrators of abuse and that "false allegations occur less than [ten] percent of the time." Id. ¶ 46.
¶21 On appeal, this court concluded the expert's testimony was improper because it "quantif[ied] the credibility of 'witnesses of the type under consideration.'" Id., quoting Lindsey, 149 Ariz. at 475. However, we determined the error was not prejudicial because the expert did not know the facts of the case and acknowledged that children sometimes lie about abuse for secondary gain, which supported the defendant's theory of the case. Id. We also found "ample extrinsic evidence of guilt," noting the victim had testified and the jury could therefore evaluate her credibility for itself. Id. ¶ 47, quoting Lindsey, 149 Ariz. at 477. We recognized the trial court had "instructed the jurors properly that they were not bound by any expert opinion and should give an opinion only the weight they believed it deserved." Id. ¶ 48. Lastly, we noted the defendant's "acquittal on two counts undercut[] his argument that the error . . . meant '[he] could not possibly have received a fair trial.'" Id., quoting Henderson, 210 Ariz. 561, ¶ 19.
¶22 Here, as discussed above, the expert's improper testimony was in response to a jury question that Guzman-Castro approved and restated during follow-up questioning. Although the expert stated that, based on her experience, false accusations of abuse by children are generally discovered before trial, the expert acknowledged she had no knowledge of the facts of this case—and thus no opinion of the credibility of these children. See State v. Haskie, 242 Ariz. 582, ¶ 18 (2017) ("[T]he more the testimony is tied to the defendant's characteristics, rather than to those of the victim, the more likely the admission of such testimony will be impermissibly prejudicial.").
¶23 The expert also testified that false reporting by children commonly occurs during "a high conflict divorce or custody dispute." Such testimony supported Guzman-Castro's defense that the children were lying as a result of their parents' separation. Moreover, during Guzman-Castro's follow-up questioning, the expert recognized that, despite her experience, "there isn't [a] body of research" on the discovery of false reports. This testimony was also consistent with and supported Guzman-Castro's theory of the case. We thus fail to see how Guzman-Castro "could not possibly have received a fair trial." Valverde, 220 Ariz. 582, ¶ 12, quoting Henderson, 210 Ariz. 561, ¶ 19.
¶24 In addition, C., R., and J. all testified at trial. Defense counsel called into question their credibility by eliciting testimony about how the children did not initially disclose J.'s abuse and how R. had "act[ed] out," particularly after their parents separated, by, among other things, fighting and throwing tantrums. Consequently, the jury was able to make the necessary credibility determinations for itself. To that point, the trial court instructed the jury that it was not bound by any expert opinion testimony: "You may accept or reject it, in whole or in part, and you should give it as much credibility and weight as you think it deserves considering the witness' qualifications and experience, the reasons given for the opinions, and all the other evidence in the case." We presume the jury followed its instructions. See State v. Prince, 226 Ariz. 516, ¶ 80 (2011). Accordingly, like the defendant in Herrera, Guzman-Castro has not met his burden of establishing fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 20.
Disposition
¶25 For the reasons stated above, we affirm Guzman-Castro's convictions and sentences.